Con Law

Question 1

Sovereign Immunity

Answer 1

• 11thA protects states - not towns or state agencies.
• Does nothing to stop US or another state as π.
• Injunctive relief OK from state officials but NOT for violations of STATE law.
• Excepts: 1) consent, 2) injunctive relief on fed claim, 3) congress expressly authorizes such suits to enforce 14thA.

Question 2

Taxpayer standing

Answer 2

NO standing to challenge govt expends, EXCEPT for Establishment Clause claims against SPECIFIC spending programs by congress (NOT the prez).

Question 3

Organizational standing

Answer 3

Org has standing on behalf of members iff 1) member(s) have standing themselves, AND 2) relevant interests relate to org mission.

Question 4

Political Q Doctrine

Answer 4

Ct declines case if: 1) Constit. gives decisionmaking power to other branch, or 2) judiciary has no standards by which to decide.

Question 5

Taxing Power

Answer 5

Congress can use a tax to prohibit primary conduct so long as “rationally related to raising revenue.”

Question 6

Prez Powers

Answer 6

Can be restraing by legislation, except:

1) Pardon power (for fed offenses)
2) Veto power
3) Fire/hire exec “officers”
4) Negotiate treaties/exec-leg agreements

Question 7

Impeachment

Answer 7

ONLY means for leg to remove exec offices. Imp. by majority of House –> then, 2/3rds vote in Senate to convict. Results in removal only.

Question 8

Cong Power over Aliens

Answer 8

Congress has plenary power over aliens and naturalization & can limit right to enter US or become a citizen for any reason

But once in the US, aliens get 5thA due process rights. And once a citizen, congress can’t strip citizenship w/out consent or fraud/bad faith.

Question 9

Individual Immunities

Answer 9

Judicial - absolutely immune unless “obviously no jx”

Leg - lawmakers AND aides absolutely imm. for acts in course of leg. process (state lawmakers separately immune)

Exec - Prez absolutely imm., but not for actions before he took office.

Question 10

Exec Privilege

Answer 10

Allows prez to shield exec comms but not if there’s suff showing of “specific need in criminal prosecution.”

Question 11

DCC

Answer 11

State can reg commerce so long as:

1) no discrim against o-o-s interests,
2) no undue burden on interstate commerce (balancing test), AND
3) law doesn’t apply wholly extraterritorially

EXCEPT discrim law is OK iff:

1) state is market participant,
2) serves imp. local interest + no nondiscrim way to serve that interest,
3) state is giving subsidies to in-staters, OR
4) congress allows it

-Protects corps & individuals

Question 12

Procedural Due Process

Answer 12

1) Is life, liberty (including parole, prison, and injury), or property being taken?
2) If yes, what process due? Usually notice & hearing, but balance private interest w/ cost/burden w/ value of extra safeguards.

NB: Pub. employee w/ “for cause” firing usually gets pre-dep. hearing barring clear need to fire immediately.

Question 13

Strict Scrutiny

Answer 13

Q: Does law serve “compelling gov’t interest,” and is it the “least restrictive means” to protect that interest?

Triggered by law discriminating against a suspect class, or involving fundamental rights.

NB: Gov’t bears burden of proving law’s validity.

Question 14

Suspect Classifications

Answer 14

1. Race/ethnicity/national origin
2. Alienage (BUT not for fed laws OR state laws “limiting participation in gov’t functions” such as voting, juries, or working as cops or teachers – these get rational basis review)

Question 15

Fundamental Rights

Answer 15

1. Interstate travel: but reasonable residency reqs for voting, tuition, etc. OK.
2. Voting/ballot access: but felons can be prohibited under 14thA.
3. Right of privacy: includes…
   - marriage
   - contraception
   - sex
   - abortion (pre-viability reg can’t be “undue burden,” post-viability reg can be but must allow in case mother’s life/health threatened)
   - parental rights
   - family relationships (ie, living together)
   - obscene materials (at home only - no child porn).

Question 16

Intermediate Scrutiny

Answer 16

Q: Is law “substantially related,” to an “important gov’t interest”?

Triggered by law classifying on the basis of gender or legitimacy.

NB: Burden is on gov’t.

Question 17

Rational Basis Review

Answer 17

Q: Is law “rationally related” to a “legitimate gov’t interest”?

NB: π bears burden on these points.

NB2: Rationale offered in ct need not match actual rationale at time of passage.

Question 18

14th A vs. 5th A

Answer 18

14thA Due Process & Equal Protection Clauses incorporate various rights as against the STATES and LOCALITIES.

5thA Due Process Clause applies as against FED GOVT.

Question 19

Quasi-Suspect Classifications

Answer 19

1. Gender

2. Legitimacy

Question 20

Attainder/Ex Post Facto

Answer 20

Bill of Attainder: criminal punishment imposed by leg. w/out trial by jury.

Ex post facto law: one that expands criminal liability retroactively (judged by time of conduct, not arrest).

Question 21

Lemon test

Answer 21

Re Establishment Clause claims…

1) does law have secular purposes?
2) is primary effect to neither advance nor prohibit religion? AND
3) does it avoid excessive gov’t interference w/ religion?

NB: Cts esp. wary of “coercive” (broadly defined) endorsements of religion.

Question 22

Free Exercise of Religion

Answer 22

Protects belief absolutely but not conduct.

Rule: Neutral, generally applicable regulations of conduct must generally be obeyed despite religious objections (but see: RFRA as applied to feds).

Question 23

Campus Access for Religious Groups

Answer 23

They get it iff public uni gives access to other student groups as well.

Question 24

Ministerial Exception

Answer 24

S.Ct. recently said 1stA reqs this exception to employment laws for religious institutions and their “ministers,” read broadly.

Question 25

Expressive Conduct

Answer 25

Law regulating are upheld iff:

1) reg. furthers important interest,
2) interest unrelated to suppression of expression, AND
3) burden on expression is no greater than nec’y.

Question 26

Content-Based Speech Restictions

Answer 26

Get strict scrutiny and are usually struck down.

Five Exceptions (FIDOC):

1) Fighting words: must be addressed to specific person. Usually unconstit. on Bar Exam.
2) Incitement: must be to immediate violence
3) Defamation
4) Obscenity: a. prurient, b. patently offensive by community standards, and c. no serious value (judge determines by nat’l standard).
5) Commercial speech: if truthful

Question 27

TPM Restrictions

Answer 27

Speech regs in public fora are OK iff:

1) content-neutral: facially and as-applied, which means no unfettered exec discretion,
2) narrowly tailored to serve significant state interest, AND
3) alternative channels of expression are left open.

Speech regs in non-public fora OK if rational & viewpoint-neutral.

Question 28

Freedom of Association

Answer 28

Regs req “compelling state interest.”

Public employees may only be punished based on political associations if:

1) members of subversive org,
2) know of org’s illegal activity, AND
3) had specific intent to further illegal goals.

Question 29

Open Primaries

Answer 29

Def: primary where any voter can participate.

Rule: States can’t req political parties to use these but can req semi-closed primaries (i.e., only voters of that party + indies).

Question 30

Privileges & Immunities - Comity Clause

Answer 30

Nonresident citizens are protected against discrimination by states w/r/t fundamental rights or essential activities (pursuit of employment, transferring prop, accessing state cts).

EXCEPT if state can show “substantial reason” for the regulation, meaning nonresidents are part of problem state trying to solve, AND no less restrictive means of doing so.